U.S. v. Juvenile Male, s. 96-10473

• Decision Date: 12 June 1997
• Docket Number: Nos. 96-10473,96-10474,96-10477,s. 96-10473
• Parties: 97 Cal. Daily Op. Serv. 5400, 97 Daily Journal D.A.R. 8761 UNITED STATES of America, Plaintiff-Appellee, v. JUVENILE MALE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. JUVENILE MALE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. JUVENILE MALE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1344

118 F.3d 1344

97 Cal. Daily Op. Serv. 5400, 97 Daily Journal

D.A.R. 8761

UNITED STATES of America, Plaintiff-Appellee, v. JUVENILE MALE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. JUVENILE MALE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. JUVENILE MALE, Defendant-Appellant.

Nos. 96-10473, 96-10474, 96-10477.

United States Court of Appeals, Ninth Circuit.

Submitted June 12, 1997. ^*

Decided July 8, 1997.

Carmen L. Fischer, Phoenix, AZ, for defendant-appellant N.P.

Thomas A. Gorman, San Diego, CA, for defendant-appellant M.A.C.

Charles M. McNulty, Wisdom & Logan, Phoenix, AZ, for defendant-appellant R.B.

Patrick J. Schneider, Assistant United States Attorney, Phoenix, AZ, for plaintiff-appellee, United States of America.

Appeals from the United States District Court for the District of Arizona; Robert C. Broomfield, District Judge, Presiding. D.C. Nos. CR-96-00352-4-RCB; CR-96-00352-2-RCB; CR-96-00352-3-RCB.

Before: GOODWIN, D.W. NELSON, and TROTT, Circuit Judges.

TROTT, Circuit Judge:

OVERVIEW

Three juvenile defendants--R.B., N.P., and M.A.C. (collectively, "Defendants")--appeal the district court's orders transferring them for prosecution as adults on charges of conspiracy to participate in a racketeering enterprise, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d). ¹ Defendants contend that the district court erred in concluding that the Government need only show that their acts had a "de minimis" effect on interstate commerce in order for the court to have jurisdiction in a RICO prosecution. In addition, juvenile N.P. argues that the RICO conspiracy count is not a "crime of violence" under 18 U.S.C. § 5032-a necessary predicate to transferring a juvenile for adult prosecution. Lastly, juvenile M.A.C. argues that the district court erred in transferring M.A.C., an Indian, for adult prosecution because the indictment did not allege one of the thirteen offenses listed in the Indian Major Crimes Act, 18 U.S.C. § 1153. We find no

error in the district court's transfer orders, and we affirm.

BACKGROUND

The following facts are taken from the testimony of Detective Karl Auerbach of the Salt River Pima-Maricopa Indian Community Police Department, who testified in the district court during an October 4, 1996 transfer hearing on the Government's motion to proceed against the juveniles as adults. We recognize that Defendants have not been convicted of these allegations.

Defendants were all members of the "Rolling 30's" Crips gang. In the early 1990's, the gang began having problems with other gangs on the Salt River Reservation who would cross out Defendants' gang graffiti and replace it with their own. Ultimately, Defendants' gang began to acquire firearms because of conflicts with other gangs.

In April 1994, the gang implemented a plan to commit armed robberies as a way of acquiring money with which to purchase additional firearms. On May 15, 1994, "Rolling 30's" Crips gang members, including juvenile R.B., robbed a Subway sandwich store located on the Salt River Reservation. The robbers took a bank bag containing $100.00, along with seven sandwiches and five bags of potato chips. The gang members murdered the lone Subway employee working during the robbery. The firearm used during the robbery had been transported in interstate commerce.

The Subway store was a franchise of the Subway Corporation in Milford, Connecticut. Most of the items purchased and sold by this particular store were acquired through interstate commerce. For example, the meats, cheeses, bread dough, cookies, paper and plastic products, and uniforms used by the restaurant were purchased from distributors outside of Arizona. In addition, a certain percentage of the profits of this store were paid out in royalties to an organization based in Connecticut.

As a result of the robbery, the Subway restaurant was forced to close for approximately two or three days, and the store experienced a significant decrease in sales and revenue for some period of time. Every employee working at that Subway quit after the murder.

In addition to the Subway robbery, "Rolling 30's" Crips gang members committed a series of other crimes, including arson, assault, robbery, and murder.

On August 13, 1996, the United States filed a twelve-page information charging Defendants, along with other juvenile members of the "Rolling 30's" Crips, with numerous federal offenses committed between April of 1994 and December of 1995.

On October 11, 1996, the district court made specific factual findings pursuant to 18 U.S.C. § 5032, as to whether the Defendants could be prosecuted as adults. Finding that each Defendant qualified for transfer, the district court then ordered Defendants transferred for adult prosecution. The district court also rejected Defendants' arguments that, because their activities did not substantially affect interstate commerce, the district court lacked jurisdiction to hear the cases. Defendants appeal the transfer orders.

STANDARD OF REVIEW

We generally review de novo a district court's assumption of jurisdiction. United States v. Matta-Ballesteros, 71 F.3d 754, 762 (9th Cir.1995), amended on other grounds, 98 F.3d 1100 (9th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 965, 136 L.Ed.2d 850 (1997). However, the question of whether or not Defendants' actions sufficiently affected interstate commerce to provide jurisdiction is a jurisdictional question intertwined with the merits. United States v. Barone, 71 F.3d 1442, 1444 n. 4 (9th Cir.1995). In instances where the question of jurisdiction is intertwined with the merits and must be resolved by a jury, the standard of review is unsettled. Id. "Because the question is resolved by the jury, the standard for reviewing the sufficiency of evidence to support a jury verdict, see Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979), may well apply to this issue." Id.

In the instant case, however, we are not reviewing a jury verdict; rather, we are reviewing

the district court's factual findings based on Detective Auerbach's testimony and its legal conclusions as to whether the factual connection to interstate commerce is sufficient to establish jurisdiction. We therefore review the district court's findings of fact for clear error, and its jurisdictional conclusion de novo.

DISCUSSION

I. RICO's Jurisdictional Nexus Requirement.

We must determine whether the Government must prove that a defendant's individual racketeering activities had more than a "de minimis effect" on interstate commerce in order to establish federal jurisdiction in a RICO prosecution. Because RICO is aimed at activities which directly affect interstate commerce, we hold that all that is required to establish federal jurisdiction in a RICO prosecution is a showing that the individual predicate racketeering acts have a de minimis impact on interstate commerce.

Relying on United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Defendants argue that the activities prohibited by RICO must substantially affect interstate commerce. Otherwise, they contend, Congress exceeded its Commerce Clause authority in enacting RICO. In Lopez, the Supreme Court held that Congress exceeded its authority under the Commerce Clause by enacting the Gun-Free School Zones Act because possession of a gun in a school zone was not an economic activity that substantially affected interstate commerce. Id. at 1634. Since Lopez, numerous defendants have made challenges to federal criminal statutes enacted under Congress' Commerce Clause authority. See, e.g., United States v. Michael R., 90 F.3d 340 (9th Cir.1996) (upholding 18 U.S.C. § 922(x)(2), which prohibits juvenile possession of a handgun); United States v. Staples, 85 F.3d 461 (9th Cir.) (upholding 18 U.S.C. § 924(c)(1), which prohibits the use of a firearm while engaged in drug trafficking), cert. denied, --- U.S. ----, 117 S.Ct. 318, 136 L.Ed.2d 233 (1996); United States v. Lomayaoma, 86 F.3d 142 (9th Cir.) (upholding the Indian Major Crimes Act, 18 U.S.C. § 1153), cert. denied, --- U.S. ----, 117 S.Ct. 272, 136 L.Ed.2d 196 (1996). Neither the Supreme Court nor the Ninth Circuit, however, has decided whether Lopez affects the interstate commerce aspect of the RICO statute.

In United States v. Robertson, 514 U.S. 669, 670-72, 115 S.Ct. 1732, 1733, 131 L.Ed.2d 714 (1995), the Supreme Court left open the question of whether individual RICO predicate acts must "substantially affect" interstate commerce. In Robertson, the defendant was charged with various narcotics offenses and with violating RICO by investing the proceeds of the narcotics offenses in a gold mine. Id. at 669-70, 115 S.Ct. at 1732. We reversed the defendant's conviction on the ground that the Government had failed to introduce sufficient evidence proving that the gold mine was engaged in or affected interstate commerce. Id.; United States v. Robertson, 15 F.3d 862, 868 (9th Cir.1994), rev'd, 514 U.S. 669, 115 S.Ct. 1732, 131 L.Ed.2d 714. The Supreme Court reversed, concluding that the activities of the gold mine operation ² "assuredly brought the gold mine within § 1962(a)'s alternative criterion of 'any enterprise ... engaged in ... interstate or foreign commerce.' " Id. at 671, 115 S.Ct. at 1733. Significant to the instant case, the Supreme Court stated, "[w]hether or not these activities met (and whether or not, to bring the gold mine within the 'affecting commerce' provision of RICO they would have to meet) the requirement of substantially affecting interstate commerce," the mine itself engaged in interstate commerce. Id. Thus, the Supreme Court left open the question of whether the individual predicate RICO acts must substantially affect interstate commerce.

In United States v. Atcheson, 94 F.3d 1237 (9th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1096, ...